LEOA0I18
116
LxaAoixa
protecting, against the abuse of maternal power, the rights of the children to the succession of their par-
ents (ICnecht, *' System des Justinianischen Kirchen-
vermogensrechtes", Stuttgart, 1905, 75-76). In any
case, Emperor Marcian restored the right to the
churches in 485 (Justinian Code, I, II, xiii). Among
the Teutonic peoples, testamentaiy liberalities prop-
erly so-called seem to have been imknown, but the^
bad an arrangement resembling the " donatio mortis
causa" of the Romans, L e., the "cessiones post
obitum '^ donations which the donor boimd himself
not to retract, but which took effect only on his death.
In virtue of the Teutonic principle of the personal-
ity of law, the inhabitants whom the Teutons found
settled in the old provinces of the empire they con-
Suered could continue to follow the Roman law. a this wa>r the power to bequeath to pious establish- ments was introduced among the Visigoths, Burgundi- ans, and Bavarians, while in Gaul pious bequests were tolerated in fact before being authorized bylaw (Loen- ing, "Geschichte d€# deutschen Kirchenrechts", II, Strasburg, 1878, 655). Several synods of the Frankish period even declare the validity of testaments, especially those of ecclesiastics, in which the formalities prescribed by the civil law had not been observed (Bon- droit, " De capacitate possidendi EcclesisB setate mero- vingica", Louvain, 1900, 87 and 105). (See Dona- tions.)
The bishops retained in the Middle Ages the right of supervising the execution of pious bequests, which had been recognized by the Justinian Code (I, III, xlv). This right was even extended, and in several regions the ecclesiastical tribunal judged of the validity of wills and supervised their execution (Fournier, op. cit., 87; Friedberp, "De finium inter Ecclesiam et Civit- atem regundorum judicio quid medii ffivi doctores etatuerint". Leipzig, 1861, 124). It was in virtue of this right that Alexander III determined the condi- tions for the validity of wills in non-ecclesiastical mat- ters (c. X., "De testamentis et ultimis voluntatibus", X, III, xxvi. See Wemz, "Jus Decretalium", III, Rome, 1901, 309). This same pope ordained, following the example of St. Gregory, that the ecclesiastical judge was to decide the validity of pious bequests not in accordance with the provisions of the Roman law but with the decrees of canon law (cc. iv, xi, " De testamentis et ultimis voluntatibus", X, III, xxvi). The practice of pious bequests was so common in the Middle Ages that it seemed improbable that any person would have dispensed himself from it. This was the origin of the right of bishops in certain places, particularly in France and Southern Italy, to dispose, in favour of pious objects, of part of the goods of an intestate deceased person (Fournier, op. cit., 89). The generosity of the faithful built and en- dowed those wonders of art, the monasteries and churches, as well as the many charitable institutions that were the glory of the medieval Church, and that the official charity of the State has succeeded neither in rivalling nor m replacing. It was not until the close of the medieval period that the civil power be- gan to restrict the acquisition of property by religious mortmain. In modern times, even in Catholic coun- tries, wills were withdrawn from the judicial authority of the Church, and the civil power finally deprived the latter of the right to adjudicate even on testamentary questions relating to pious bequests.
IV. Actual Canonical Legislation.— The Church reserves to itself, even now, an exclusive authority in the matter of pious wHIb and legacies; it has its own legislation, the Roman law modified on several points by canon law, and its ecclesiastical tribunals to examine the questions connected therewith. (1) Be- sides persons who by natural law or in virtue of the enactments of Roman law are incapable of making a will, the Church refuses to accept- the pious bequests of usurers (c. ii, De usuris, in \'I®, V, 5), of heretics
and their accomplices (c xiii, De luereticis, X, V» 7),
and of those who are euilty of attacks on the cardinals
(c. v, De pcBnis,in VI , V, 9). In practice, the Church
refuses at the present time, to accept the bequests of
sinners who die impenitent, and especially of usurers,
in order not to be enriched by their ill-gotten goods
(Santi, "Prselectiones juris canonici". III, Rome,
1898, 224-25). Religious who make solemn vows of
profession are permitted to make wills only during the
two months preceding their solemn profession; other
religious must conform to the rules of their congrega-
tion. The rules {norma) drawn up by the Con^regsr
tion of Bishops and Regulars for the approbation of
institutes bound by sim^e vows (Rome, 1901) forbid
the making of wills after religious profession without
the permission of the Holy ^c or, m case of iirgency,
without the authorization of the bishop or the supe-
riors (Art. 120 and 122. See Vermeersch, "Dc reli-
giosis", I, Bruges, 1902, 148).
(2) It is not alone bequests made to churches that enjoy the prerogatives established by canon law, but also those made to monasteries, reli^ous houses, and all institutions, whether purely religious or of a charit- able character subject to the direction of religious authorities. However, certain religious orders, either because they practise poverty in a stricter manner, or in virtue of their constitution, have only a restricted right to acquire property by legacy or will (Santi, op. cit., Ill, 238-9; Wemz, op. cit., Ill, 322).
(3) The heirs of the testator are obliged to execute pious bequests, even if they have not been made in accordance with the formaUties prescribed under penalty of nullity by the civil law, pro- vided canon law considers them to have been made validly. The State has an incontestable right to prescribe the formalities requisite for the valid- ity of wills in all matters falling within its juris- diction, but pious legacies and bequests for pious purposes are under the exclusive control of the Church. This principle was clearly enunciated by Alexander III in the decretal "Relatum" (c. xi, De testamentis et ultimis voluntatibus, X, III, xxvi). It is true this decretal was addressed to the judges of Velletri, a town in the Papal States, but its force can^ not be restricted solely to the territory imder the tem- poral power of the pope, and the insertion of the decre- tal in the "Corpus Juris*', or general law of the Church , deprives the obj ection of aU force. It has been urged that a contrary custom had abrogated this ca- nonical enactment, and that, moreover, only natural equity and the favour shown by the Church to pious bequests have caused pious legacies made with a neg- lect of solemn formalities to be considered vaUd. llie constant practice of the Holy See proves that this ar- gument is not conclusive. On 10 January, 1901, the Sacred Penitentiaria declared that, as a general rule, it considers valid and binding in conscience pious be- quests which the civil law declares void on account of the omission of extrinsic formalities prescribed by the civil law. Nevertheless, in such a case the ecclesiasti- cal authorities are generally disposed to come to terms with the heirs C' Acta Sanctae Sedis'*, XXXIV, Rome, 1902, 384). (See, in the same sense, the decrees of the S. C. C. "in cans. Arimin.'*, 13 September. 1854; "in cans. Hortana", 29 Februarj^ 1855; and reply of the Penitentiaria, 23 June, 1844.J
According to the common opinion of theologians, for a pious Dequest to be obligatory in conscience it suffices that the wish of the testator be well e»stab- lished, e. g. by a holograph or a \^Titing merely signed by the testator, by a verbal declaration made to the heir himself or before two witnesses (a single testi- mony other than that of the heir would be insuffi- cient). If it be urged that the testator has revoked his bequest, the fact must be proved. The Congrega- tion ot the Council decided, 16 March, 1900, ui&t a writing containing erasures, which is only a draft of a
